Conflict-Related Sexual Violence Symposium: Key findings of CIJA’s Investigation into the IS Slave Trade

[Stephanie Barbour is the Senior Sexual and Gender-based Violence Adviser at the Commission for International Justice & Accountability.This is a post in our joint blog symposium building on the discussion focusing on accountability for conflict-related sexual violence crimes associated with slave trade, slavery and trafficking, held as part of the Digital Dialogue Series, hosted regularly by the UN Team of Experts on the Rule of Law and Sexual Violence in Conflict.]

During a recent discussion hosted by the UN Team of Experts on Sexual Violence in Conflict, moderated by leading expert in the field of gender justice Patricia Viseur Sellers, my co-panellists and I were invited to discuss “The importance of a label: understanding the impunity gap for conflict-related sexual violence crimes associated with slavery and trafficking”. I spoke about the practical challenges of investigating the IS slave trade, including strategies used to collect evidence that would meet criminal evidentiary standards, as summarised in part one of this post (and see my article in the 2020 special issue of the JICJ). This part now considers CIJA’s approach to the legal characterisation of IS enslavement practices and the importance of these labels for capturing the multiple harms that have been inflicted on victims.

It is often assumed that sexual and gender-based violence (SGBV) is harder to investigate to a criminal standard (i.e. attribution of individual criminal responsibility) than other categories of crime, especially in conflict. This belief is one of the reasons that it is often overlooked or undercharged. Yet in the case of the IS slave trade, there is ample evidence available to support robust charging of an array of international and transnational crimes. A plethora of evidence has been compiled that shows how IS operated a highly orchestrated and well regulated slave trade in women and children captured as ‘spoils of war’.

The label “enslavement” was applied as the title of the CIJA casefile on the IS slave trade in women and children across the territory it held in Syria and Iraq. This was not a legal characterisation but rather the term that best describes the system which facilitated the numerous crimes IS forces members committed against those it treated as sabaya – spoils of war, property captured from the enemy. The casefile applies a full and rigorous legal analysis based on ICHL derived from both the Rome Statute and customary international law – including but certainly not limited to enslavement. Recourse to customary international law was important, because it prohibits crimes such as rape and enslavement as peremptory norms even in the absence of treaty obligations or adequate domestic codification of crimes. There can be acute and important distinctions between treaty and custom when it comes to sexual crimes.

Ultimately, we determined that the acts inherent in the IS slave trade amounted to all forms of genocide, including imposing measures to prevent births in the group and transferring children to another group, and multiple crimes against humanity, including enslavement, rape, sexual slavery, forced marriage, forced pregnancy, and other acts of sexual violence such as forced contraception and forced abortion. Crimes against humanity of torture, gender, and religion-based persecution, and forced conversion of religion amounting to an inhumane act are also substantiated by the evidence, as well as the war crime of conscription and use of children in hostilities in relation to the abducted Yazidi boys subjected to religious and military indoctrination and induction into the ‘cubs of the Caliphate’.

Driven by the lack of codification of ICHL crimes in Iraqi or Syrian domestic law, we looked to other sources of customary, treaty, and domestic law to find legal qualifications that encompass the conduct and the associated harms. We found the same evidence could support legal characterisations of the crimes of slave-trading (discussed in detail by fellow contributors to the Special Issue here) and human trafficking, notably both available in Iraqi law, among other possible charges that do not attract automatic sentences of capital punishment.

During the dialogue, audience members asked questions about whether there have actually been prosecutions under any of these legal characterizations or, rather, are the sexual crimes being rendered invisible in the cases that come to indictment and trial.

When it comes to seeing justice done in courtrooms for the slave trade – as with the vast array of crimes in the Syrian conflict – the opportunities have been scant to date. The majority of suspected IS members brought to justice have been tried on terrorism-related charges that have not surfaced any ICHL violations, including sexual or gender-based harms, for which an accused may bear criminal responsibility. This is largely true of prosecutions both in Iraq and in other states exercising extraterritorial or universal jurisdiction. However, a growing number of cases focusing on ICHL violations are being built in these third states against IS members and other actors in the Syrian conflict. These still-rare investigations and cases focus on those who may be available for prosecution in the state’s jurisdiction, such as returning foreign terrorist fighters or those who attempted to flee to Europe or beyond after defection.

Of these, only a few ongoing investigations in foreign jurisdictions have progressed to arrest of suspects and active proceedings based on charges of international crimes in relation to the IS slave trade. To date, all of those cases have been in Germany. While no slave-trade charges have been laid per se, in Dusseldorf, Sarah O. is charged with, inter alia, trafficking and deprivation of liberty in relation to three Yazidi women held in her home while she was in Syria. In Frankfurt-am-Main, Iraqi national Taha Al-J, who was extradited from Greece, is on trial for killing the young child of a Yazidi woman enslaved in his home and faces charges of genocide, crimes against humanity, war crimes, trafficking and membership in a terrorist organisation. Other cases against suspected IS members accused of involvement in slavery are ongoing and similarly embrace the cumulative charging approach that CIJA advances in its own casefile.

Having conducted large-scale situational investigations into crimes in Syria and Iraq for several years and working closely with national prosecution units to support their investigations, from the perspective of CIJA the most significant limitation on SGBV charging remains the piecemeal way in which cases emerge under the patchwork of extraterritorial jurisdiction options that is currently the only real avenue to justice. The handful of German cases have shown that prosecutors are increasingly prepared to pursue charges of trafficking, enslavement, genocide or other appropriate characterisations where the right case presents itself. This is also true in relation to cases against other actors in the Syrian conflict. For example, a court conducting proceedings against intelligence officers Anwar R. and Eyad A. in the first trial related to torture in Syrian Regime detention has heard evidence (see day 45) of sexual violence as a facet of the torture inflicted on detainees in Syrian prisons. Legal representatives of the victims have filed a motion to have ordinary sexual offence charges recharacterized as crimes against humanity. Prosecutors may have taken the more cautious approach in that case, wary of their ability to sufficiently contextualise the acts of sexual violence as part of the overall attack on a civilian population and link them to the accused. However, they did not opposed the motion – which was ultimately successful in March of this year..

It is to be hoped that this first trickle of cases that address the IS slave trade and SGBV more broadly in the Syria conflicts will, with time and new opportunities to apprehend suspects, become an avalanche. If this happens, the importance of legal characterisations that underscore the nature of the criminality and the multiple and overlapping harms caused to victims should become embedded practice. In the meantime, there is much to be gained through encouraging exchanges between investigators and prosecutors working across jurisdictions about how to make the best use of available evidence and find appropriate legal characterizations.